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Australian Judicial Review Washington University Global Studies Law Review Volume 6 Issue 2 January 2007 Australian Judicial Review Kathleen E. Foley Orrick, Herrington & Sutcliffe LLP Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Recommended Citation Kathleen E. Foley, Australian Judicial Review, 6 WASH. U. GLOBAL STUD. L. REV. 281 (2007), https://openscholarship.wustl.edu/law_globalstudies/vol6/iss2/4 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. AUSTRALIAN JUDICIAL REVIEW KATHLEEN E. FOLEY∗ INTRODUCTION Judicial review has long been considered an “axiomatic” part of Australia’s legal system,1 despite the lack of any express provision in the Australian Constitution conferring such a power on the High Court. In Mark Tushnet’s terms, Australian judicial review is “strong-form,” as the High Court maintains “general authority to determine what the Constitution means” and its “constitutional interpretations are authoritative and binding” on the legislatures and executives at the federal, State, and Territory levels.2 With the United States acting as the paradigmatic example of the “strong-form” model, one might assume that Australian judicial review operates similarly to judicial review in the United States. However, such an assumption is mistaken.3 A unique creature with its own distinctive history, Australian judicial review deserves greater scholarly attention than it has been given. With that in mind, this Article endeavors to evaluate the development of judicial review of legislation in Australia.4 Part I outlines the basic structure of Australia’s constitutional system and considers the source and operation of Australian judicial review. Part II examines the High Court’s approach to judicial review by considering three phases in the Court’s history. First, this Part surveys the formative years of the High Court and the development of its legalistic approach to judicial review, with particular attention given to the High Court’s earliest ∗ B.A., LL.B. (Hons) (U.W.A.), LL.M. (Harv.). Associate, Orrick, Herrington & Sutcliffe LLP. I wish to thank Rosalind Dixon for her valuable insights and support, as well as the following members of the Harvard Law School faculty for their comments and encouragement: Professor Charles Fried, Professor Richard Fallon, and Dean Elena Kagan. The opinions expressed in this Article are those of the author alone and do not necessarily represent the views of Orrick, Herrington & Sutcliffe LLP or any of its clients. 1. Austl. Communist Party v. Commonwealth (1951) 83 C.L.R. 1, 262–63 (Fullagar, J.) [hereinafter Communist Party Case]. 2. Mark Tushnet, Alternative Forms of Judicial Review, 101 MICH. L. REV. 2781, 2784 (2003). 3. Mary Crock & Ronald McCallum, Australia’s Federal Courts: Their Origin, Structure, and Jurisdiction, 46 S.C. L. REV. 719, 733 (1995). 4. This Article uses the term “judicial review” to refer to the High Court’s exercise of its power to declare statutes passed by federal, state, or territory legislatures to be unconstitutional. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). As will be discussed, the High Court often refers to Marbury when seeking to establish the basis of Australian judicial review. E.g., Communist Party Case (1951) 83 C.L.R. at 262. This Article will not examine judicial review of executive or administrative action. 281 Washington University Open Scholarship p 281 Foley book pages.doc10/12/2007 282 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 6:281 years, from 1903 to 1919, and Sir Owen Dixon’s tenure as Chief Justice from 1952 to 1964.5 Second, this Part considers the Mason Court (1987- 1995),6 which was the first High Court to conduct its work without the oversight of the Privy Council.7 Widely regarded as Australia’s most activist High Court, the Mason Court took a very different view of its judicial review power,8 making its work of particular interest in this Article. Finally, Part II studies the contemporary High Court, the Gleeson Court, and its attempt to reign in the perceived activism of the Mason years. Examining the High Court’s constitutional jurisprudence beginning in 1998, the year of Chief Justice Gleeson’s appointment,9 this Article contends that the Gleeson Court’s approach to judicial review bears many hallmarks of the legalistic approach adopted by the early High Court. I. AUSTRALIAN JUDICIAL REVIEW: BUILDING BLOCKS A. The Australian Constitution’s Basic Structure By a legislative act of the United Kingdom Parliament,10 the Australian Constitution joined “the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania” to make “one indissoluble Federal Commonwealth.”11 The Australian colonies chose to federate, not out of revolutionary desires to separate from the United Kingdom but instead under the belief that they might benefit from a central government with the 5. Leslie Zines, Dixon Court, in THE OXFORD COMPANION TO THE HIGH COURT OF AUSTRALIA 220 (Tony Blackshield et al. eds., 2001) [hereinafter OXFORD COMPANION]. 6. At the outset, it is important to emphasize Sir Gerard Brennan’s observation that, although describing phases of the Court by reference to the presiding Chief Justice is “a useful shorthand,” it is not meant to diminish the contribution of each member of the Court during any particular period of time. Sir Gerard Brennan, A Tribute to Sir Anthony Mason, in COURTS OF FINAL JURISDICTION: THE MASON COURT IN AUSTRALIA 10 (Cheryl Saunders ed., 1996) [hereinafter COURTS OF FINAL JURISDICTION]. Moreover, it should be noted that the eras of the High Court’s work discussed in this Article certainly have blurred edges. For example, some of the hallmarks of the Mason Court’s approach can certainly be seen in cases decided prior to Mason’s appointment as Chief Justice. 7. Keith Mason, Citizenship, in COURTS OF FINAL JURISDICTION, supra note 6, at 43. 8. Cheryl Saunders, The Mason Court in Context, in COURTS OF FINAL JURISDICTION, supra note 6, at 7. 9. Bret Walker, Gleeson, (Anthony) Murray, in OXFORD COMPANION 305 (Tony Blackshield et al. eds., 2001). 10. See COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900, § 9 (U.K.). 11. AUSTL. CONST. pmbl. It should be noted that there are no references to Western Australia in the preamble. There was a good deal of uncertainty about whether Western Australia would join the Federation, and the Western Australian referendum on the question was not held until three weeks after the enactment of Australia’s Constitution. Consequently, Covering Clause 3 of the Constitution provided for Western Australia’s possible late entry. Documenting a Democracy: Australia’s Story, http://www.foundingdocs.gov.au/item.asp?dID=11 (last visited Sept. 8, 2007). https://openscholarship.wustl.edu/law_globalstudies/vol6/iss2/4 p 281 Foley book pages.doc10/12/2007 2007] AUSTRALIAN JUDICIAL REVIEW 283 power to legislate on matters of common concern.12 The Australian Constitution was “drafted by a select group of delegates to a series of constitutional conventions held in Australia during the late 1890s, and then endorsed by the voters at referenda.”13 The Australian constitutional framers were influenced by both the English legal tradition, under which the Australian colonies were established and governed, and the United States Constitution.14 Like the United States Constitution, the Australian Constitution establishes a federal system of government, consisting of the federal government (referred to in the Constitution as “the Commonwealth”), States, and Territories.15 The Australian Constitution gives the federal legislature enumerated powers,16 leaving state parliaments with residual powers. Like its American counterpart, the Australian Constitution devotes separate chapters to the federal legislature (Chapter I), executive (Chapter II), and judiciary (Chapter III). However, unlike the United States Constitution, the Australian Constitution describes a parliamentary system of government.17 The Federal Parliament is comprised of the Queen, Senate, and House of Representatives.18 The two Houses of Parliament consist of members “directly chosen by the people,”19 with each State sending an equal number of senators.20 In accordance with the parliamentary system, section 64 of the Australian Constitution provides that “no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.”21 The framers viewed responsible government as a 12. JOHN A. LA NAUZE, THE MAKING OF THE AUSTRALIAN CONSTITUTION 1–2 (1972). See also N.K.F. O’Neill, Constitutional Human Rights in Australia, 17 FED. L. REV. 85, 85 (1987). 13. PETER J. HANKS & DEBORAH CASS, AUSTRALIAN CONSTITUTION LAW: MATERIALS AND COMMENTARY 4 (6th ed. 1999). 14. See Stephen Gageler, Foundations of Australian Federalism and the Role of Judicial Review, 17 FED. L. REV. 162, 164 (1987). 15. Contemporary Australia has six states (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia), two mainland territories (the Australian Capital Territory and the Northern Territory), and a number of external territories. CIA—The World Factbook— Australia, http://www.cia.gov/library/publications/the-world-factbook/geos/as.html (last visited Sept. 8, 2007). 16. Although this Article uses the word “federal,” the Constitution itself employs the term “the Parliament of the Commonwealth.” AUSTL. CONST. § 1. Section 51 is the principal provision granting and outlining the federal legislature’s powers. AUSTL. CONST. § 51. 17. Simply put, this form of government involves “an executive government chosen from and responsible to Parliament.” Sir Anthony Mason, The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience, 16 FED.
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